Hundreds of Documents Unsealed in 3M Defective Earplug Litigation

May 7, 2020, 3:30PM. By Jane Mundy

Hundreds of pages of court documents, including depositions, were recently unsealed and reveal that 3M Officials knew its Combat Earplugs were defective

Pensacola, FLRecent unsealed depositions confirm that 3M officials knew their Combat Arms earplugs were defective and that information was withheld from the military. Further, some 3M employees didn’t believe that soldiers “needed to know how to adjust” their earplugs so they would fit properly.

A federal judge in Pensacola on April 20 made hundreds of documents public. Besides depositions, these documents include emails, memos and receipts related to the Defense Department’s purchase of 3M’s earplugs between 2003 and 2015.

In the depositions, Elliot Berger, division scientist for 3M’s Personal Safety Division, acknowledged an internal memo that said “ the existing product has problems unless the user instructions are revised,” reported Bloomberg Government, a division of Bloomberg Industry Group. As well, when Timothy McNamara, 3M’s sales manager for the U.S. Midwest was asked during his deposition whether soldiers were entitled to know that the way the company tested the earplugs wasn’t the same way that service members were instructed to use them, he answered “I don’t believe so.”

Despite visiting military bases frequently, McNamara said that he never shared how to use the earplugs in order to achieve the advertised noise-reduction rating, reported Bloomberg. Plaintiffs argue that 3M knew from testing that the earplugs were too short to fit properly into an ear canal and could loosen in a way that was imperceptible to the wearer. 3M modified the design but the military was given information to show that the modification was for people with very large ear canals. Other testing results were conducted before the earplugs were shortened to fit into a carrying case, according to court documents.

And according to Stripes.com, these now- public documents reveal that the earplugs accounted for 5% of 3M’s U.S. revenue within its hearing protection business and 20% of its operating income: the earplugs cost 85 cents to make and were sold for $7.63. An internal email from 3M states that the company had “no data” on the current version of earplug sold to the military.

3M’s “Government Made Me Do It” Defense

Likely to the chagrin of 3M, the depositions were unsealed before a ruling by federal Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida. 3M is counting on the government as its defense: that 3M is immune from liability because it acted as a government contractor.

3M further denies that it withheld information from the government. A company spokesperson said in an email statement:
“As noted in 3M’s briefs, the company worked in close coordination with the U.S. military on the CAEv2 product and informed the military that the company’s testing had shown that the military’s decision to shorten the CAEv2 created potential fitting issues…The U.S. military was aware of those issues and the need to train users of the product to fold back the flanges on the opposite end, as needed, to get a good fit.”

Department of Justice Settlement

In 2018 the 3M Company forked out $9.1 million to the Department of Justice (DOJ) to resolve claims that the company knowingly sold defective earplugs to the military. DOJ accused 3M of defrauding the military and not meeting its design requirements, which hampered their effectiveness and resulted in thousands of military veterans to file product liability lawsuits alleging they suffered hearing loss, tinnitus and other injuries due to the design of 3M Combat Arms earplugs version 2 (CAEv2), which were standard issue by the U.S. military between 2013 and 2015.

Federal Military Combat Earplug Lawsuits

To date, more than 150,000 former U.S. service members are pursuing claims against 3M Company and it’s Aero Technologies subsidiary. They include almost 23,000 personal-injury suits filed by veterans in March alone, according to the Transactional Records Access Clearinghouse at Syracuse University. The mass tort case is expected to get a trial date in 2021 before Judge Rodgers.